The principle of estoppel is not applicable where the truth of the matter is known to both the parties.

Raj Kishore Prasad, J.

1. The two points pressed, in this Letters Patent Appeal, against the judgment of Mr. Justice S. K. Das, as he then was, are : (1) whether the plaintiff-respondent is estopped by the principle of acquiescence from claiming a greater area; and (2) whether the impugned mortgage decree is binding on Dasrath Singh, defendant-appellant 2.

2. The plaintiff-respondent brought a suit for declaration of his title and confirmation of possession, or in the alternative for recovery of possession, in respect of 40 acres of land comprised in plot No. 839, under holding No. 339, situated in village Alawalpur.

3. The plaintiffs case was that, on 30th of October 1954, Milan Singh, Ramprasad Singh, father of Dasrath Singh, defendant-appellant 2, and Ishar Singh, defendant-appellant 1, executed a mortgage deed, in favour of the plaintiff, in respect of 2.63 acres of land, which included 1.81 acres out of holding No. 339. Holding No. 339 consisted of six plots, and included plot No. 839, the disputed land also. The entire area of plot No. 839 was .79 acres.

4. On the foot of the mortgage, the plaintiff brought a mortgage suit against the executants. Admittedly, to this suit, Dasrath Singh, defendant-appellant 2, who was then a minor, was not impleaded, although his father, Ram Prasad Singh, who was one of the executants, was a party to the suit. The mortgage suit was decreed, and, a final decree was prepared, on 14th April, 1938.

5. The decree was put into execution, and the mortgaged properties were sold on 16th December, 1938, and, the delivery, of possession was given on 25th of April, 1939. By mistake, in the execution petition, sale proclamation, sale certificate and the writ of delivery of possession, the area of plot No. 839 was mentioned as .39 acres only, instead of 79 acres although in all these four documents, the boundaries mentioned were the boundaries of the entire plot No. 839, and not a portion of it only The plaintiff, thereafter, on the strength of the delivery of possession, got himself recorded in the landlords sherista in respect of .39 acres only.

6. When the above mistake was discovered, the plaintiff applied before the Court, which passed the decree and sold the mortgaged land, to correct the area of plot No. 839 from .39 acres to .79 acres on the ground that the area was wrongly written by the scribe. This petition of the plaintiff was allowed on 1st February, 1945 but without any notice, to the judgment debtors, at the plaintiffs risk. The plaintiff, therefore, pleaded that there was a mis-description of the area of plot No. 839, in the above mentioned four documents, because the boundaries, mentioned therein, showed that the entire plot No. 839 was intended to be sold, and, the entire plot was actually sold, and, delivery of possession of the entire plot was given to the plaintiff.

7. There was an adverse order against the plaintiff in a proceeding under Sec.144 of the Code of Criminal Procedure, and, therefore, the plaintiff brought the present suit claiming the reliefs stated before.

8. Ishar Singh, defendant-appellant 1 appeared in the suit, and filed a written statement to the effect that only the southern portion of plot No. 839 was mortgaged, and that was the area which was sold in execution of the mortgage decree, and, the plaintiff came in possession over that portion, and as such the plaintiff had no right to .40 acres as claimed in the suit. He, further, contended that the amendment allowed, being without notice to the judgment debtors, was not binding on them.

He further raised a plea that Dasrath Singh, appellant 2, not having been made a party to the mortgage action, the decree passed therein was not binding on him, and, therefore, the plaintiff had acquired no title to the disputed land vis-a-vis Dasrath Singh, appellant 2. Dasrath Singh, appellant 2, also later, appeared in the suit, and adopted the written statement of Ishar Singh, defendant-appellant 1.

9. The learned Muns